[2023] UKUT 176 (AAC)

There are two grounds of appeal. Ground 1 is that the FtT erred in considering whether overnight care was needed because the overnight care condition contains no such requirement. Ground 2 is that the FtT erred in its approach to “on a regular basis” in paragraph 12(3)(b) of Schedule 4.

In respect of Ground 1, Mr Martinez for the Appellant submits that the regulation contain no definition of “care” and that it should not include any assessment of the nature of the care provided. Such a requirement would be burdensome administratively and would be unduly prescriptive against those who are providing care while on benefits or on an unpaid basis. Being in receipt of the relevant benefit (daily living component of PIP) means that care is needed. The provisions are to be contrasted with those governing entitlement to personal independence payment, which do call for a detailed assessment. Moreover, the 2013 Regulations do not call for consideration of whether the care is required, as compared to the predecessor housing benefit provisions which did include a requirement for overnight care.

Mr Howell, for the Secretary of State, submits that “care” is an ordinary word which is to be construed and applied in its context, that the natural and ordinary meaning is to provide personal services to a person who requires them. He relies on the legislative history of the overnight care condition, starting with the housing benefit conditions of entitlement to an additional bedroom and the approach of the courts including in the important decisions of the Court of Appeal in Burnip v Birmingham City Council [2013] PTSR 117 and of the Supreme Court in R (MA) v Secretary of State for Work and Pensions [2016] 1 WLR 4550. He submits that the 2013 Regulations gave effect to the policy which had been introduced in respect of housing benefit and which had been confirmed by the courts, which is that an additional bedroom should be available where overnight care is required.

In respect of Ground 2, Mr Martinez relies on SD v Eastleigh Borough Council HB) [2014] UKUT 325. The Upper Tribunal considered the definition of the term “requires overnight care” in the housing benefit provisions applicable in that appeal. The definition included that the relevant authority was satisfied that the person reasonably required and had in fact arranged that one or more persons who did not occupy the dwelling should be engaged in providing overnight care and “regularly stay overnight at the dwelling for that purpose”. The Upper Tribunal said that “regularly” can mean “habitually”, “customarily” or “commonly”, could cover provision that is erratic, that the assessment of regularly must be made over a fairly long period, and that there is no requirement that it is provided on a majority of nights.

Mr Howell submits that regularly means “sufficiently often”, which is something more than intermittent. It is an ordinary word not subject to strict definition and it is necessary to consider all the circumstances. The FtT’s approach in this case was consistent with this. It took into account a range of factors, but did not direct itself that a pattern of care was a requirement of the condition. Its approach was consistent with the decision in SD.